Section 2 of The Indian Easements Act, 1882
Section 2 of the Act provides that nothing contained in the Act shall be deemed to affect any law unless it is expressly repealed by the Indian Easements Act; or to derogate from:
(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;
(b) any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property; or
(c) any right acquired, or arising out of a relation created, before this Act comes into force.
There are several unrepealed Indian enactments in which reference is made to easements, for example;
There are a few other enactments in which reference is made to “easements.” First para of this section lays down that the Act will not affect these enactments.
Clause (a): By the customary law of India the Government has the power to regulate in the public interest the collection, retention and distribution of the waters of natural rivers and streams for the purposes of irrigation. This power, which is really of the nature of a duty, is expressly preserved by section 2 (a) and has been recognised by the Courts.
It is clear from section 2(a) read with S. 7 that the overriding powers of the State to regulate the streams and rivers are not taken away. Further it is well settled that the State while regulating the water source cannot defeat the customary supply of water based upon either prescription or natural right.1)
Clause (b): Where any right, customary or other, however much resembling an easement, has no connection with the enjoyment of any particular heritage it is not an easement and therefore is not affected by the provisions of this Act. For example, a custom of the inhabitants of a particular village, to dance or to have horse-races on the land of an individual, or to go on a close and take water from a spring, or a custom of going on certain land for the purpose of religious observances, or of burying dead and other like customs are not easements inasmuch as these are public rights annexed to the place in general. Similarly, public rights of way which all persons in the empire are entitled to use at their pleasure irrespective of the ownership of any estate are not easements.
There is a world of difference between a customary right and customary easement. An easement is acquired by particular modalities; goes with the land or, rather with the lands : the land which claims the easement is called dominant tenement and the land which is subjected to easement is called servient tenement. Customary easement vests in the dominant tenement; not in the particular person or a group of persons unless they are rightfully in possession of the dominant tenement in question. A customary right, on the other hand, is claimed by a person or by a group of persons under a custom recognised by the community as a whole.2)
Clause (c): saves all rights already acquired which spring from some legal relation entered into between parties before the coming into force of this Act, in other words, it means that the Act will have no retrospective effect.